Baum v. Union Surety & Guaranty Co.

Opinion by

Smith, J.,

This action is brought on a bond, conditioned that the principal obligor shall account for and pay over all moneys, etc., received by him as agent of the obligee; and the declaration avers the receipt by him of 11,318.77, with a failure to pay as required by the condition. The r^ply, made by the surety, alleges two grounds of defense: 1. That the deponent “ is informed and so believes ” that the principal “ denies the charges and facts set forth in plaintiff’s statement, and claims that he has in all respects, and in manner and form as required by the bond in suit, and by his employment, performed all the condiditions and duties thereof.” 2. That “plaintiffs have caused the arrest of the principal upon the charge of embezzlement, and the trial is still pending in the city of Washington.”

The denial of the cause of action, contained in the first allegation, should properly have been made by the principal. Though not summoned in the action, no reason is shown why his affidavit as to this ground of defense could not have been obtained. If this was impracticable, and the surety, in addition to information and belief of the matters alleged, expected to be able to prove them, this should have been averred. But the mere information and belief of one defendant, as to denials and claims by a co-defendant respecting the cause of action, avail nothing unless coupled with expectation of the means of proof. Without such expectation, no ground of defense is presented.

The second allegation is defective both in form and substance. It does not appear that the alleged prosecution is for the embezzlement of the moneys for which suit is brought, nor that it is conducted in a court of competent jurisdiction; and while it is alleged that this prosecution is pending in the city of Washington, it does not appear that the default set forth in the declaration is there a penal offense. These are essential elements of the defense set up in the affidavit. Whatever the rule in relation to actions ex delicto, arising from felonious conversion, there is no authority for the proposition that a contract cannot be enforced, or that action on it must be suspended, becausé the party in default may, by his non-performance, have incurred a criminal liability. Moreover, the default alleged in the declaration is not necessarily criminal. It may arise from a well founded disagreement between the parties respecting the amount payable, from questions in relation to disputed claims and allowances, or from other causes not criminal.

Judgment affirmed.